CATCHWORDS:
Criminal Law
Prohibited comment by Crown Prosecutor
Directions to jury
No errors in direction
Alternatively no substantial miscarriage of justice

LEGISLATION CITED:
Crimes Act 1900 (NSW) s 98
Evidence Act 1995 (NSW) s 20(3)
Criminal Procedure Act 1986 (NSW) s 48
Criminal Appeal Rules r 4

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 60576/00
BEAZLEY JA
BELL J
SMART AJA
Wednesday, 1 May 2002

R v Jeffrey Paul NOONAN

FACTS
The appellant was found guilty by a jury of wounding with intent to rob: s 98 of the Crimes Act 1900 (NSW). The Crown case was that the appellant and his accomplice, having forced their way into the victim’s house wounded the victim by hitting him with a replica shotgun and a hammer. The appellant said that the gun was not his and that he was at home with his de-facto on the night in question. He had not served any alibi notice on the Crown as required by s 48 of the Criminal Procedure Act 1986 (NSW) prior to giving this evidence.
During his address the Crown prosecutor commented on the appellant’s failure to call his de-facto. Such a comment was expressly prohibited by s 20(3) of the Evidence Act 1995 (NSW) which prevented prosecutors from commenting on the failure of certain family members to give evidence. The trial judge specifically addressed the Crown’s error in his directions to the jury. The first ground of appeal was that the comment by the Crown and the direction given by the trial judge constituted a miscarriage of justice.
The Crown prosecutor also commented during his address on the appellant’s failure to lodge an alibi notice. The second ground of appeal was that the Crown had failed to lead evidence from the appellant about the lodging of an alibi notice and that failure combined with the lack of a direction by the trial judge on the matter resulted in a miscarriage of justice.
HELD
Per Beazley JA (Bell J and Smart AJA agreeing)
(i) In respect of the first ground of appeal there was no error in the trial judge’s direction: R v Gardner [2001] NSWCCA 381.
(ii) In respect of the second ground of appeal the appellant had given evidence that amounted to an acknowledgment that no alibi notice had been given. There was no miscarriage of justice in the Crown’s comment not being subject to a direction by the trial judge.
(iii) Even if the errors did either individually or cumulatively amount to a miscarriage of justice, this was an appropriate case…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Noonan

Details

AGLC: R v Noonan [2002] NSWCCA 150
Case: [2002] NSWCCA 150
Decision Date: 1 May 2002

CaseChat Overview and Summary

The case of R v Noonan involved the appellant appealing against his conviction. The appellant was found guilty of various charges related to an armed robbery that occurred on 25 February 2000. During the robbery, the appellant, along with an accomplice, entered the home of Mr O’Dwyer at gunpoint, demanded money, and assaulted Mr O’Dwyer in the process. The appellant argued that there were errors in the direction given to the jury and that these errors led to a miscarriage of justice. The Court of Appeal was tasked with determining whether the trial judge’s directions to the jury contained any errors and, if so, whether these errors resulted in a substantial miscarriage of justice.

The primary legal issue was whether the trial judge’s directions to the jury were correct and whether any errors in the directions were so significant that they resulted in a miscarriage of justice. The appellant argued that the trial judge did not adequately direct the jury on the identification evidence, specifically regarding the reliability of witness identification of the appellant. The appellant contended that the trial judge should have emphasised the potential unreliability of identification evidence in the context of the poor lighting and the disguise worn by the intruder. The Crown, on the other hand, argued that the trial judge’s directions were correct and that any errors were not substantial enough to result in a miscarriage of justice.

The Court of Appeal held that there were no errors in the trial judge’s directions to the jury. The Court found that the trial judge had adequately directed the jury on the principles of identification evidence and had appropriately cautioned the jury on the potential unreliability of such evidence. The Court emphasised that the jury had been properly directed to consider the circumstances under which the identification was made, including the poor lighting and the disguise worn by the intruder. The Court concluded that even if there had been some minor errors in the directions, they did not amount to a substantial miscarriage of justice. The appellant’s conviction was therefore upheld.

No orders were made by the Court of Appeal as the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals against his conviction.Facts The Crown case was that on 25 February 2000 at around 11.45pm Mr O’Dwyer and his housekeeper Mrs Beryl Fay Grube heard a rattling at the front screen door of Mr O’Dwyer’s house. Mrs Grube went to the door. A female speaking in a muffled voice said, “its Cathy, its Cathy, I’ve got problems”. Mrs Grube, who has very poor eyesight, has a daughter named Cathy. The female had a scarf around her head and it was dark at the front door. She did not realise that the female was not her daughter until after she had let her in the house. The female was wearing a blue checked shirt. Mr O’Dwyer also came to the front door. He saw a male on the porch holding a shotgun. Mr O’Dwyer and Mrs Grube were forced back into the house and Mr O’Dwyer was pushed onto the lounge. The male intruder demanded money. After initially denying that there was any money in the home, Mr O’Dwyer told him there was money in a tin. The male intruder threatened Mrs Grube that he would bash her if the money was not produced. Mr O’Dwyer then grabbed the barrel of the shotgun and a struggle ensued. The male intruder began to flail Mr O’Dwyer with his hand and called out to the female, “Michelle, come and hit him with the hammer”. Mr O’Dwyer sustained a number of injuries, including cuts to his face. He lost quite a lot of blood but does not remember being hit with the gun or the hammer. Whilst the struggle was in progress, Mrs Grube sneaked out the back door to a neighbour’s house to raise the alarm and the police were called. The intruders had fled, however, before they arrived. On 8 March 2000 Mr O’Dwyer identified the photograph of the male intruder from eighteen photographs shown to him by the police. Mitchell Pomfret, a real estate sales agent, gave evidence that on 24 February 2000, he attended at premises leased to Lee Noonan for the purpose of making a sales appraisal. He spoke to someone who introduced himself as Jeff Daniels. Mr Pomfret attended at the property a second time later that day. On this occasion, he noticed a sawn-off shotgun on a chair in the dining room. He considered the gun had some unusual features and thought it might have been a home-made weapon. Mr Pomfret had been a fitter/armourer in the Army. He attended at Macquarie Fields Police Station on 15 June 2000 and identified the appellant from a series of computer generated photographs as the person he spoke to and who introduced himself as Jeff Daniels. Mr Pomfret’s evidence was corroborated by two employees from the same real estate agency. These two employees also made a photograph identification of the appellant. On 1 March 2000, the appellant had been travelling in Ms Noonan’s when it was stopped by the police in Campbelltown. The vehicle was towed back to the police station and searched. Various items of clothing were found in the search including three blue checked shirts and a hat of the same style as the hat worn by the male offender on the night of the offence. The appellant identified the blue checked shirts as his and said that Ms Noonan wore them from time to time. Also located was what appeared to be a sawn-off shotgun under the passenger side rear seat. There was a red stain on the handle of the shotgun.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Noonan [2002] NSWCCA 150

Most Recent Citation

Regina v Ugochukwu [2003] NSWCCA 104

Cases citing this decision · 2 of 2 shown

Macri v The the Queen
[2022] NSWCCA 177 Para 117

…91 NSWLR 276; Regina v RD [2016] NSWCCA 84; S v The Queen (1989) 168 CLR 266; Regina v Littler [2001] NSWCCA 173; and Jackmain (a pseudonym) v Regina [2002] NSWCCA 150.…
Regina v Ugochukwu
[2003] NSWCCA 104

…s v The Queen (1993) 178 CLR 193 Festa v The Queen (2002) 208 CLR 593 Gilbert v The Queen (2000) 201 CLR 414 R v Heyde (1990) 20 NSWLR 234 R v Noonan [2002] NSWCCA 150 R v Whittaker (1993) 68 A Crim R 476 Zoneff v The Queen (2000) 200 CLR 234 PARTIES : Regina (Respondent) Ireanus Ugochukwu (Appellant) FILE NUMBER(S)…

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Cases cited in this decision · 9 of 9 shown

R v Gardner
[2001] NSWCCA 381 Para 28

…The Crown relied on R v Gardner [2001] NSWCCA 381 where the Crown prosecutor had also made a comment prohibited by s 20(3), as being more directly in point. In that case, reference was made in the Crown prosecutor’s address to the fact that the mother of the accused had not given evidence to support the accused’s al…
R v Bozzola
[2001] NSWCCA 8 Para 6

…rror is so fundamental such that “the proceedings have so far miscarried as barely to be a trial at all ”: Wilde at 372-373. See also R v Bozzola [2001] NSWCCA 8; Glennon v R (1994) 68 ALJR 209.…
Azzopardi v The Queen
[2001] NSWCCA 57 Para 24

…The appellant submitted that the direction given by his Honour was similar to the direction given in R v Zreika [2001] NSWCCA 57. Zreika involved a Jones v Dunkel direction. The appellant had been charged with one count of deemed supply of a prohibited drug in that he had possession of a quantity of drug which was…
R v Scott
[2000] NSWCCA 535 Para 27

…In R v Scott (2000) 112 A Crim R 543 an unqualified Jones v Dunkel direction had been given. Greg James J said: “To suggest it was open to conclude that evidence of those persons would not have assisted the case of the appellant was such as to divert the jury. To suggest that they might consider that the appellant…
Buckland v The Queen
[1997] HCATrans 287 Para 25

…n CJ and Carruthers AJA agreeing), noted that whilst a Jones v Dunkel direction in a criminal trial had been held to be permissible: see R v Buckland (1977) 2 NSWLR 452, an important rider was put on the use of the direction by Street CJ in that case at 459: “In criminal proceedings, however, the making of a comment…
Glennon v The Queen
[1994] HCA 7 Para 6

…hat “the proceedings have so far miscarried as barely to be a trial at all ”: Wilde at 372-373. See also R v Bozzola [2001] NSWCCA 8; Glennon v R (1994) 68 ALJR 209.…
Wilde v the Queen
[1988] HCA 6 Para 5

…proviso will not be applied where the convicted person has “lost a real chance of acquittal” : R v Storey (1978) 140 CLR 364 at 376. In Wilde v R (1988) 164 CLR 365 Brennan, Dawson and Toohey JJ, after referring to the authorities summarised the principle in these terms at 372: “Unless it can be said, the accused may…
R v Storey
[1978] HCA 39 Para 5

…here are two considerations. First, the proviso will not be applied where the convicted person has “lost a real chance of acquittal” : R v Storey (1978) 140 CLR 364 at 376. In Wilde v R (1988) 164 CLR 365 Brennan, Dawson and Toohey JJ, after referring to the authorities summarised the principle in these terms at 372:…
Mraz v The Queen
[1955] HCA 59 Para 5

…which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed: see Mraz v The Queen (1955) 93 CLR 493 at 514. The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice. The question whether the jury would inevitably…

Legislation cited in this decision · 4

Crimes Act 1900 (ACT)
98 2 mentions (from Para 1)
Criminal Procedure Act 1986 (NSW)
48 2 mentions (from Para 14)
Evidence Act 1995 (Cth)
20(3) 2 mentions (from Para 21)
Criminal Appeal Act 1912 (NSW)
1 mention (from Para 4)